Basheer vs Suhara

R. Basant, J.—The petitioner has suffered an ex parte order u/s 125 Cr.P.C obliging him to pay maintenance at the rate of Rs. 2,500/- per mensum to the second respondent, his child. The petitioner was abroad at the relevant time and according to him, he has not been duly served. He has come back from his place of employment now and has learned that an ex parte order has been passed against the petitioner. Moreover, C.M.P. No. 681/09 has been filed before the Family Court, Malappuram for execution of the ex parte order. An amount of Rs. 22,500/- being the amount allegedly payable under the impugned ex parte order is claimed in the said execution petition. A warrant of arrest issued by the learned Judge of the Family Court is chasing the petitioner, it is alleged.

The petitioner has, thereupon, filed an application to get the ex parte order passed against him set aside. Ext.P6 is said to be the copy of that application filed on 26/08/2009. The short grievance of the petitioner is that Ext.P6 is not being disposed of and in the meantime, the order is sought to be executed against him by arrest and detention. The learned Counsel for the petitioner prays that there may be a direction for early and expeditious disposal of Ext.P6 application to set aside the ex parte order and Ext.P7 application to condone the delay in filing the same.

According to the learned Counsel for the petitioner, the petitioner has very valid contentions to urge in defence of the claim u/s 125 Cr.P.C. According to him, there has been no neglect or refusal and adequate stipulations for maintenance of the child have already been made and provided as per Ext.P1 agreement between the parties. In these circumstances, it is prayed that there may be a direction for expeditious disposal of Exts.P6 and P7 applications and for a further direction that the petitioner may not be arrested in execution of the ex parte order which is sought to be executed by C.M.P. No. 681/09.

In the facts and circumstances of this case, we are satisfied that Exts.P6 and P7 deserve to be disposed of as expeditiously as possible. We are further satisfied that subject to appropriate conditions, it can be insisted that the ex parte order should not be executed till Exts.P6 and P7 is disposed of in accordance with law. In response to our specific query, the learned Counsel for the petitioner offers to deposit 2/3 of the amount payable as claimed in C.M.P. No. 68/09 immediately.

We are, in these circumstances, satisfied that this petition can be allowed and appropriate directions can be issued. It is not necessary to wait for issue and return of notice to the respondent.

In the result, this writ petition is allowed subject to conditions.

(i) The court below shall dispose of Exts.P6 and P7 applications as expeditiously as possible, at any rate, within a period of two months from the date on which a copy of this judgment is placed before the Family Court, Malappuram along with the number of the C.M.Ps that is Exts.P6 and P7.

(ii) It is further directed that during the said period of two months, no further action for execution shall be taken in C.M.P. No. 681/09 on condition that the petitioner deposits an amount of Rs. 15,000/- (Rupees fifteen thousand only) before the Family Court in the Execution Petition within a period of ten days from this date.